Also known as:reasonable expectations test · reasonable expectation of privacy test
Written by attorneys · grounded in primary & secondary sources — see below
A two-part test used by courts to determine whether government conduct constitutes a search under the Fourth Amendment. The first prong requires that a person exhibit an actual subjective expectation of privacy. The second prong requires that the expectation be one society is prepared to recognize as reasonable.
Sources & Authorities
How it applies
Common Examples
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Phone Booth Surveillance Recording
Ronald Reed stepped into a public telephone booth, closed the door behind him, and placed a call. Federal agents attached an electronic listening device to the exterior of the booth and recorded his conversation without a warrant. Because Ronald manifested a subjective expectation of privacy by shutting the door and society recognizes conversations inside a closed booth as private, the recording violated his reasonable expectation of privacy and amounted to a search.
Electronic Data Acquisition Abroad
Rina Rahman, a foreign national located in the United States, sent encrypted messages from her laptop to overseas contacts. Government agents intercepted the messages by acquiring data from a server located outside the country. Because the location of the target rather than the server controls the analysis, Rina's reasonable expectation of privacy in her communications was not defeated by the foreign location of the data, and the acquisition constituted a search.
Put it into practice
Test Yourself
1
Practice Questions1
· 1 primary source
Select any source to read its text and confirm it supports the definition.
Cases
Casebooks
United States v. Mohammad339 F.Supp.3d 724 (N.D. Ohio 2018)
Common questions
Frequently Asked
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What are the two parts of the reasonable expectation test?+
The test first asks whether the person exhibited an actual subjective expectation of privacy. It next asks whether that expectation is one that society is prepared to recognize as reasonable.
Supporting sources
Does ownership of the premises determine whether a person has a reasonable expectation of privacy?+
No. A person need not own the space. Lawful control, such as a hotel guest's rental of a room, combined with affirmative steps to exclude others, can establish both a subjective and an objectively reasonable expectation of privacy.
Supporting sources
How does the reasonable expectation test apply when the government uses electronic surveillance?+
The test focuses on whether the person sought to keep the information private and whether society recognizes that privacy interest. Electronic interception of conversations inside a space the person treated as private satisfies both prongs even if the device is installed without physical entry by officers.
Supporting sources
Criminal Law Constitutional ProtectionsConstitutional protections of accused persons · Arrest, search, and seizure [Fourth Amendment]NEXTGENIntermediate